JUDGMENT

G. C. Mathur, J. - A common question of law relating to the liability of the railway administration for damages in respect of short delivery of goods booked at railway risk but under defective packing arises in these two revisions and, therefore, they are being disposed of by one common judgment.

2. Civil Revision No. 1125 of 1965 arises out of Suit No. 26 of 1962 filed by the applicant for recovery of a sum of Rs. 465/- with interest for short delivery of several consignments of copper scrap. The forwarding notes in respect of these consignments showed that the packing was defective and was not in the manner prescribed in the Goods Tariff, Part I, which required articles like copper scrap to be packed as follows :

"Must be securely packed in strong double gunny, not patched or otherwise repaired, and securely stitched."

The forwarding notes showed that some of the bags used in the consignment, were old, used, weak and resewn. The consignments were booked and delivered some time in the year 1961 and the case is, therefore, governed by the Indian Railways Act, as it stood prior to the amendment which came into force from January 1, 1962, which will hereinafter be referred to as the 1961 Act. The railway administration pleaded that, even though goods were booked at railway risk, it was protected by Section 74-A of the 1961 Act as the gods were defectively packed and the fact was mentioned in the forwarding notes. The trial court decreed the suit, holding that, even so, the burden of proving that the loss was not due to negligence or misconduct of the railway authorities was on the railway administration which it had failed to discharge. I relied upon the decision of a Single judge of this Court in Virat Pal v. Union of India, A.I.R. 1968 Alld. 2. The opposite-party went up in revision against the judgment and decree of the trial court and the Additional District Judge, Aligarh, allowed the revision, set aside the judgment and decree of the trial court and dismissed the suit. He distinguished the decision in Virat Pal v. Union of India, holding that, in his opinion, it was reasonable to infer that the loss was the direct result of the defective packing. The plaintiff has now come up in revision to this Court.

3. Civil Revision No. 1272 of 1967 arises out of Suit No. 42 of 1963 which was for recovery of a sum of Rs. 347- for short delivery in respect of several consignments of copper and brass scrap. In this case also the packing was defective and this fact was mentioned in the forwarding note. In this case, the consignments were booked and delivery was taken after the 1961 Act had been amended with effect from January 1, 1962. The trial court rejected the contention of the railway administration that it was protected by Section 77-C of the amended Act (which is equivalent to Section 74-A of the 1961 Act) as, in its view, it was a case of goods and not of "damage, deterioration, leakage, or wastage", as contemplated by Section 77-C. It further held that the shortage could not be. attributed to the defective packing. It accordingly decreed the suit. On revision, the Additional District Judge, Aligarh, set aside the judgment and decree of the trial court and dismissed the suit. He held that the trial court was wrong in holding that there was any burden on the railway administration which it had failed to discharge. The plaintiff has not filed this revision.

4. The relevant provisions of the 1961 Act are Sections 72, 72-A and 74-A. Section 72 provided that the responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of the Act, be that of a bailee under the Contract Act. Section 72-A provided for execution of forwarding notes by the consignor, inter alia, in cases of articles defectively packed or in a defective condition. Section 74-A was in these terms :

"74-A (1) -When any goods te